Summary: Mr X complained about the Council’s decision to allow the removal of a stone wall hedge. We did not investigate further because we are unlikely to find fault, recommend a remedy to Mr X or achieve any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to allow removal of a stone wall hedge and replacement with a grass bank, which he considers unsightly.
2. Mr X said the Council should remove the grass bank and replace it with a stone wall hedge.
3. Mr X also complained that residents were not consulted when the Council considered and approved an application to discharge a planning condition.
4. Mr X said the Council should review its condition discharge processes to ensure proper consultation.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I read the complaint and invited Mr X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report, which are available on the Council’s website.
7. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

13. Several years ago, the Council approved a planning application for housing development which was subject to conditions. One of the conditions controlled boundary treatments and another controlled landscaping details.
14. During construction, a stone wall hedge was removed to improve access for site traffic. This hedge had been referred to in a report submitted by the applicant’s agent, which stated the hedge would be retained.
15. The developer submitted a condition discharge application with details of the new boundary treatment. This application was approved by planning officers using delegated powers.
16. The Council’s planning enforcement officers received a complaint about what had been constructed. It was a grass bank that was planted. The enforcement officers decided that while there was a breach of planning control, because the grass bank did not match what was shown on approved plans, it was acceptable. This was because the purpose of the boundary feature was to allow an ecological corridor, and the grass bank served this purpose adequately. They decided not to take enforcement action.
17. Mr X does not live very close to the site, but said he and other residents consider the grass bank to be a poor and inappropriate substitute for the original stone wall hedge it replaced.

My findings

18. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
19. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
20. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
21. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
22. I should not investigate this complaint further and my reasons are as follows:
• I am not aware of any obligation on planning authorities to consult on condition discharge applications.
• The main decision here is the planning enforcement decision. Before it made its decision, the Council was aware of the issue and its powers. It decided no further enforcement action was justified – this was a judgement for it to make and we are not an appeal body to planning decisions. I consider it unlikely that further investigation would result in a finding of fault in the way the planning enforcement decision was made.
• Mr X was not caused a significant injustice by what has happened, and further investigation is unlikely to result in a remedy for him or a different outcome to the decision made by planning enforcement officers.

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Final decision

23. I ended my investigation because it is unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman